T 0320/21 (Annealing aluminium alloy sheet material/Aleris) 20-02-2023
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METHOD OF ANNEALING ALUMINIUM ALLOY SHEET MATERIAL
Arconic Corporation
C-TEC CONSTELLIUM TECHNOLOGY CENTER /
CONSTELLIUM NEUF-BRISACH
Basis of decision - text or agreement to text withdrawn by patent proprietor
Basis of decision - patent revoked
I. The appeals by opponents 1 and 2 (appellants 1 and 2) lie from the interlocutory decision of the opposition division to maintain the patent in amended form on the basis of what was then auxiliary request 1.
II. In its communication under Article 15(1) RPBA 2020, the board was of the preliminary opinion that the patent should be revoked.
III. By letter of 30 January 2023, the respondent (patent proprietor) declared that the consent to the Official Communication according to Rule 71(3) EPC dated 26 October 2018 and the consent to the patent in amended form according to the decision of the first instance dated 11 February 2021 (main request in appeal procedure) were withdrawn.
IV. By letter of 10 February 2023, the respondent additionally withdrew auxiliary requests 1 to 27, which were then still pending, and requested that the proceedings be terminated.
1. Under Article 113(2) EPC, the European Patent Office is to consider and decide upon a European patent only in the text submitted to it, or agreed, by the proprietor of the patent.
2. By withdrawing its approval of the text of the patent as granted and the text of the patent as maintained by the opposition division, and by withdrawing auxiliary requests 1 to 27, the respondent withdrew its approval of any text for maintenance of the patent.
It is up to the patent proprietor to define the text of the claims and the description. However, in the current case there is no approved text of the patent.
3. Since there is no text of the patent on the basis of which the board can decide the present appeal, the patent can only be revoked, as stated in Article 101 EPC (Case Law of the Boards of Appeal of the EPO, 10th edition 2022, III.B.3.3).
For these reasons it is decided that:
1. The decision under appeal is set aside.
2. The patent is revoked.